IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ... · DB1/ 110162847.1 - 2 - or after having revoked consent. See Snyder, et al. v. Ocwen Loan Servicing, LLC, No. 1:14-cv-08461,

DB1/ 110162847.1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KEITH SNYDER, SUSAN MANSANAREZ, and TRACEE A. BEECROFT, individually and on behalf of all others similarly situated,

Plaintiffs, v.

U.S. BANK N.A., WILMINGTON TRUST, N.A., CITIBANK, N.A., and DEUTSCHE BANK NATIONAL TRUST COMPANY, individually and in their Capacities as Trustees,

Defendants.

NO. 1:16-cv-11675 Class Action Jury Trial Demand Honorable Matthew F. Kennelly

DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

I, Beth E. Terrell, declare as follows:

1. I am a member of the law firm of Terrell Marshall Law Group PLLC (“TMLG”),

counsel of record for Plaintiff in this matter. I am admitted to practice before this Court and am a

member in good standing of the bars of the states of Washington and California. I respectfully

submit this declaration in support of Plaintiff’s Motion for Preliminary Approval of Class Action

Settlement. Except as otherwise noted, I have personal knowledge of the facts set forth in this

declaration, and could testify competently to them if called upon to do so.

Our Work on the Case

2. Before filing this action, Tracee Beecroft and other consumers sued Ocwen,

alleging that Ocwen used an Aspect autodialer to make millions of debt-collection calls to the

cellular telephones of Plaintiff and other consumers without first obtaining prior express consent,

Case: 1:16-cv-11675 Document #: 181-1 Filed: 11/26/19 Page 1 of 98 PageID #:2840

DB1/ 110162847.1

- 2 -

or after having revoked consent. See Snyder, et al. v. Ocwen Loan Servicing, LLC, No. 1:14-cv-

08461, DE #1 (N.D. Ill.). On November 17, 2016, several years into the Ocwen Lawsuit, Ms.

Beecroft and the other plaintiffs asked for permission to amend the complaint to add claims

against DBNTC and other residential mortgage-backed securitization (“RMBS”) trustees that

held securitized mortgage loans serviced by Ocwen (the “Trustees”). Id. at DE #110. The

plaintiffs alleged that the trusts included loans of Ms. Beecroft and proposed class members in

the Ocwen Lawsuit. Ms. Beecroft alleged that the debt-collection calls Ocwen made violated the

TCPA and were made on the Trustees’ behalf and that DBNTC was directly and vicariously

liable under the TCPA. Id. This Court denied the request to amend as untimely. Snyder, at DE

#126. Ms. Beecroft and the other plaintiffs then filed this lawsuit. DE #1. In their Complaint, Ms.

Beecroft and the other plaintiffs alleged that the Trustees were both directly and vicariously

liable for the calls that Ocwen placed.

3. After the Complaint was filed, Plaintiff successfully defeated DBNTC’s Motion

for Judgment on the Pleadings. The parties then exchanged initial disclosures, Plaintiff next

served interrogatories, requests for production of documents, and requests for admission, to

which Defendant responded. Through these discovery requests, Plaintiff obtained and analyzed

information, including contracts and correspondence.

4. Plaintiff served a second set of requests for production seeking information

regarding (1) the relationship between the loans DBNTC held in trust and Ocwen and (2) any

knowledge that DBNTC had about any alleged violations of the law by Ocwen. Overall, DBNTC

produced over 25,000 pages of documents. Plaintiff’s counsel used this discovery to evaluate the

strength of the claims and defenses in the action.


DB1/ 110162847.1

- 3 -

5. Plaintiff also responded to interrogatories, requests for production, and requests

for admission propounded by Defendant. And the parties exchanged information during the

mediation process, including information relating to the number of debtors with loans held in

trusts administered by DBNTC that may have received calls from Ocwen.

6. On June 13, 2019, the Trustees moved for summary judgment, arguing that the

revised settlement with Ocwen extinguished Beecroft’s claims. DE #136. On July 14, 2019, this

Court denied DBNTC’s attempt to dismiss Beecroft’s vicarious liability claim (DE #157) and

subsequently denied the Trustees’ request to certify the question to the Seventh Circuit (DE

#162). However, this Court granted dismissal of Beecroft’s claims that DBNTC was directly

liable for the claims asserted in the litigation.

7. On August 29, 2019, following failed informal settlement negotiations, the parties

attended mediation with JAMS mediator, Robert A. Meyer, where the parties reached agreement

on material terms and executed a term sheet.

8. The parties notified the Court of the Settlement on September 4, 2019. ECF No.

167.

9. Plaintiff’s counsel conducted confirmatory discovery prior to finalizing the

Settlement Agreement. Specifically, Plaintiff’s counsel deposed DBNTC’s Rule 30(b)(6)

representative, Vice President Ronaldo Reyes, who testified that DBNTC team members did not

recall receiving complaints or seeing documentation related to Ocwen’s alleged practice of

calling borrowers without consent, or Ocwen’s alleged violation of the Telephone Consumer

Protection Act, and that DBNTC did not have any oversight role over Ocwen as a mortgage loan

servicer.


DB1/ 110162847.1

- 4 -

10. Plaintiff’s counsel also deposed DBNTC’s expert, Elaine Smith, who explained

the steps she took to identify the Settlement Class Members. Namely, Ms. Smith started with

Ocwen’s calling data, reviewed Ocwen’s investor code data, which purported to identify which

loans were held in which RMBS trusts and which entity acted as trustee for each of the trusts,

and identified unique cell phone numbers called during the class period that Ocwen associated

with loans that purportedly were held in trusts that DBNTC administered.

11. Finally, DBNTC answered a confirmatory interrogatory regarding the types of

differences in the separate agreements that govern RMBS trusts for which DBNTC serves as

trustee.

12. Following confirmatory discovery, the parties executed the Settlement

Agreement, a copy of which is attached as Exhibit 1.

13. If any amounts remain in the Settlement Fund after distribution is complete,

including any second distribution, the parties request that the Court direct those funds to be

disbursed cy pres to Public Justice Foundation, a non-profit organization. Part of Public Justice’s

mission is to “challenge predatory corporate conduct.” More information about the organization

is available on its website, https://www.publicjustice.net.

Background and Experience

14. TMLG is a law firm in Seattle, Washington, that focuses on complex civil and

commercial litigation with an emphasis on consumer protection, product defect, civil rights,

employment, wage and hour, real estate, and personal injury matters. The attorneys of TMLG

have extensive experience in class actions, collective actions, and other complex matters. They

have been appointed lead or co-lead class counsel in numerous cases at both the state and federal

level. They have prosecuted a variety of multi-million-dollar consumer fraud, civil rights, wage


DB1/ 110162847.1

- 5 -

and hour, and product defect class actions. The defendants in these cases have included

companies such as Wal-Mart, Microsoft, Best Buy, Toyota, Honda, Sallie Mae, Comcast, ABM

Industries, Inc., AT&T, T- Mobile USA, Weyerhaeuser, Behr Products, American Cemwood,

Bank of America, Discover Financial Services, Capital One, and HSBC.

15. TMLG has actively and successfully litigated class action lawsuits under the

Telephone Consumer Protection Act (“TCPA”). TMLG has taken the lead in some of the largest

nationwide class actions filed under the TCPA, including those filed against large financial

institutions such as Sallie Mae, Bank of America, Discover Financial Services, Capital One, and

HSBC. I have been appointed co-lead counsel in two of the largest MDLs involving TCPA

claims, In re Capital One Telephone Consumer Protection Act Litigation, 1:12-cv-10064 (N.D.

Illinois), and In re Monitronics International, Inc. Telephone Consumer Protection Act

Litigation, MDL No. 1:13-MD-2493 (N.D. W. Va.).

16. TMLG is litigating or has recently settled the following Telephone Consumer

Protection Class Actions:

In re Capital One Telephone Consumer Protection Act Litigation—Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. I served as court-appointed Interim Co-Lead Counsel; final approval of the $75,455,098.74 settlement was granted in February 2015.

In re Monitronics International, Inc. Telephone Consumer Protection Act Litigation—Filed on behalf consumers who received automated, prerecorded solicitation telephone calls on their residential and business telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., the Washington Automatic Dialing and Announcing Device statute, RCW 80.36.400, and the Washington Consumer Protection Act, RCW 19.86 et seq. I serve as co-lead counsel in the MDL. The case settled on a class-wide basis in 2017 for $28,000,000, and final approval was granted on June 12, 2018.


DB1/ 110162847.1

- 6 -

Abante Rooter and Plumbing, Inc., et al. v. Alarm.com Incorporated, et al.—TMLG represents two certified classes of consumers who received automated solicitation telephone calls on their cellular and residential telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. The case settled on a class-wide basis for $28,000,000 and final approval was granted on August 13, 2019.

Snyder v. Ocwen Loan Servicing, LLC—Filed on behalf of consumers who received automated collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. The case settled on a class-wide basis for $21,500,000 and was finally approved in the United States District Court for the Northern District of Illinois on June 4, 2019.

Abante Rooter and Plumbing, Inc. v. Pivotal Payments Inc— Filed on behalf of small businesses that received automated solicitation telephone calls to their cell phones. The case settled on a class-wide basis for $9 million and final approval was granted by the United States District Court for the Northern District of California in October 2018.

Charvat v. Plymouth Rock Energy—Filed on behalf of consumers who received automated solicitation telephone calls on their cellular and residential telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. and/or to telephone numbers registered on the National-Do-Not-Call Registry. The case was finally approved in the United States District Court for the Eastern District of New York on July 31, 2018.

Melito v. American Eagle Outfitters, Inc.—Filed on behalf of consumers who received spam text messages on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. The case settled on a class-wide basis in 2016 for $14,500,000, and final approval was granted by the United States District Court for the Southern District of New York in September 2017. The United States Court of Appeals for the Second Circuit affirmed the settlement on April 30, 2019. Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85 (2d Cir. 2019)

Ashack v. Caliber Home Loans—Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227


DB1/ 110162847.1

- 7 -

et seq. TMLG negotiated a nationwide settlement in 2016 for $2,895,000, and final approval was granted in June 2017.

Joseph v. TrueBlue Inc.—Filed on behalf of consumers who received spam text messages on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. The case settled on a class-wide basis in 2016 for $5,000,000, and final approval was granted in March 2017.

Gehrich v. Chase Bank USA—Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. TMLG negotiated a $34,000,000 nationwide settlement; final approval was granted in March 2016.

Ott v. Mortgage Investors Corporation—Filed on behalf of consumers who received automated solicitation telephone calls on their cellular and residential telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. TMLG negotiated a $7,483,600 class-wide settlement and final approval was granted in January 2016.

Wilkins v. HSBC Bank Nevada, N.A.—Filed on behalf of individuals who alleged that HSBC made prerecorded calls using an automatic dialing system. The case settled on a class-wide basis in 2014 for $39,975,000, and final approval was granted in March 2015.

Rose v. Bank of America Corp.—Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. TMLG negotiated a nationwide settlement of $32,083,905, which was granted final approval in August 2014.

Steinfeld v. Discover Financial Services—Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. TMLG negotiated an $8.7 million settlement, which was granted final approval in March 2014.

Arthur v. Sallie Mae, Inc.—Filed on behalf of consumers who received automated, prerecorded collection telephone calls on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq.


DB1/ 110162847.1

- 8 -

TMLG negotiated a $24.15 million nationwide settlement, and final approval was granted in 2012.

17. I am the lead attorney from TMLG in the instant litigation. A founding member of

TMLG, I concentrate my practice in complex litigation, including the prosecution of consumer,

defective product, and wage and hour class actions. I have served as co-lead counsel on

numerous multi-state and nationwide class actions. I also handle a variety of employment issues

including employment discrimination, restrictive covenant litigation, and pre-litigation

counseling and advice.

18. I received a B.A., magna cum laude, from Gonzaga University in 1990. In 1995, I

received my J.D. from the University of California, Davis School of Law, Order of the Coif.

Prior to forming TMLG in May 2008, I was a member of Tousley Brain Stephens PLLC. I am a

frequent speaker at legal conferences on a wide variety of topics including consumer class

actions, employment litigation, and electronic discovery, and I have been awarded an “AV”

rating in Martindale Hubble by my peers.

19. I am actively involved in several professional organizations and activities. For

example, I currently am an Eagle Member of the Washington State Association of Justice

(“WSAJ”). I am the current Chair of the Washington Employment Lawyers Association, Chair

of the Northwest Consumer Law Center, and President of the Public Justice Foundation.

20. I have been repeatedly named to the annual Washington Super Lawyers list. I

have also been named to the Top 100 Washington Super Lawyers list and the Top 50 Women

Super Lawyers list.

21. Jennifer Rust Murray was another key member of the legal team. She is a

founding member of TMLG. Ms. Murray graduated from the University of Washington School

of Law in 2005 where she was a member of the Washington Law Review. Ms. Murray's law


DB1/ 110162847.1

- 9 -

review article entitled "Proving Cause in Fact under Washington's Consumer Protection Act: The

Case for a Rebuttable Presumption of Reliance" won the Carkeek prize for best submission by a

student author. Prior to law school, Ms. Murray earned a Ph.D. in Philosophy from Emory

University. Ms. Murray has been an active member of the Washington State Bar Association

since her admission to the bar in 2005. In 2010, Ms. Murray was admitted to the Oregon State

Bar. In 2011, 2012, 2013, 2014, and 2015, Ms. Murray was named a Washington "Rising Star"

by SuperLawyer Magazine. Ms. Murray focuses her practice on complex commercial litigation

with an emphasis on consumer and employment issues. She has been involved in nearly every

class action prosecuted by the firm.

22. Adrienne D. McEntee is a member of TMLG. Ms. McEntee graduated from the

University of Washington School of Law in 2003, where she was a member of the Pacific Rim

Law and Policy Journal and Moot Court Honor Board. Prior to joining TMLG, Ms. McEntee was

a member of Tousley Brain Stephens PLLC, where she practiced for five years. Before entering

private practice, Ms. McEntee worked with the King County Prosecuting Attorney’s Office,

where she prosecuted a broad range of crimes. Ms. McEntee has tried approximately fifty cases

and has briefed, argued, and won cases before the Washington State Court of Appeals. Since her

admission to the bar, Ms. McEntee has been an active member of the Washington State Bar

Association and Washington Women Lawyers, as a member of the Judicial Evaluation

Committee. In 2018 and 2019, Ms. McEntee was named to the Washington Super Lawyers list.

Attorneys’ Fees and Costs

23. Plaintiff’s counsel have received no payment for their fees or costs. Plaintiff’s

counsel will file a motion with the Court requesting up to one-third of the settlement fund, or


DB1/ 110162847.1

- 10 -

$847,130, to compensate them for the work performed in the case and the risk they undertook in

taking on the representation on a contingent basis.

24. TMLG, along with Burke Law Offices, and the Heaney Law Firm, have

collectively devoted hundreds of hours to litigating this case since its inception in 2016. When

they file their motion for attorneys’ fees, Plaintiff’s counsel will provide the Court with their

detailed information regarding their hourly rates and lodestar.

25. Plaintiff’s counsel will also request reimbursement of their out-of-pocket costs

incurred in prosecuting this case, in an amount not to exceed $15,000. Plaintiff’s counsel will

provide the Court with detailed information about these costs in their motion for attorneys’ fees.

26. Plaintiff’s counsel will also request that Ms. Beecroft receive an incentive award

of $10,000. Ms. Beecroft has actively participated in the case, including by consulting with

counsel, reviewing the Complaint, responding to written discovery requests including

interrogatories and requests for production, and requests for admission. She was also deposed

and prepared to testify at trial. The award compensates Plaintiff for her time, effort, and risks

undertaken in prosecuting the case.

Estimated Payments to Class Members

27. The parties have identified 339,123 Settlement Class Members. The parties

arrived at this number by matching information obtained in discovery that identifies loans held in

trusts for which DBNTC acts as trustee with Ocwen’s calling records.

28. After a competitive bid process, Plaintiff’s counsel proposes to retain P&N

Consulting as the settlement administrator. P&N Consulting has estimated its costs to carry out

the notice plan and otherwise administer the settlement agreement at $279,749.


DB1/ 110162847.1

- 11 -

29. If the Court awards attorneys’ fees in the requested amount of $847,130, awards

reimbursement of litigation costs of up to $15,000, approves administrative expenses of

$279,749, and approves an incentive award of $10,000 to the Class Representative, the

remainder of the Settlement Fund – approximately $1,389,511 — will be distributed equally to

Settlement Class Members who file a simple claim form. The amount each claimant will receive

depends upon the number of claims submitted. For example, if 15% of the 339,123 Settlement

Class Members file claims, each will receive approximately $25.

30. Securing settlement now with certainty of payment not only provides significant

relief to Settlement Class Members who submit claims, but it also exacts a significant payment

from DBNTC, particularly in a case where the calls at issue were not made by DBNTC itself but

by Ocwen. I believe the settlement is fair, reasonable, adequate, and in the best interest of the

Settlement Class as a whole.

I declare under penalty of perjury under the laws of the State of Washington and the

United States of America that the foregoing is true and correct.

EXECUTED this 26th day of November, 2019 at Seattle, Washington.

/s/ Beth E. Terrell, Admitted Pro Hac Vice

Beth E. Terrell, Admitted Pro Hac Vice


DB1/ 110162847.1

- 12 -

CERTIFICATE OF SERVICE

I, Beth E. Terrell, hereby certify that on November 26, 2019, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which will send notification of

such filing to the following:

Kenneth Michael Kliebard Email: [email protected] William James Kraus Email: [email protected] MORGAN, LEWIS & BOCKIUS LLP 77 West Wacker Drive Chicago, Illinois 60601-5094 Telephone: (312) 324-1000 Facsimile: (312) 324-1001 Michael S. Kraut Email: [email protected] MORGAN, LEWIS & BOCKIUS LLP 101 Park Avenue New York, New York 10178 Telephone: (212) 309-6000 Facsimile: (212) 309-6001 Attorneys for Defendant Deutsche Bank National Trust Company Kelsey L. Kingsbery Email: [email protected] Frank A. Hirsch, Jr., Admitted Pro Hac Vice Email: [email protected] Sarah R. Cansler, Admitted Pro Hac Vice Email: [email protected] ALSTON & BIRD LLP 4721 Emperor Boulevard, Suite 400 Durham, North Carolina 27703 Telephone: (919) 862-2200 Facsimile: (919) 862-2260


DB1/ 110162847.1

- 13 -

Terance A. Gonsalves Email: [email protected] David B. Carpenter, Admitted Pro Hac Vice Email: [email protected] ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street, Suite 4900 Atlanta, Georgia 30309 Telephone: (404) 881-7000 Facsimile: (404) 881-7777 Anna-Katrina S. Christakis Email: [email protected] Jennifer L. Majewski Email: [email protected] PILGRIM CHRISTAKIS LLP 321 North Clark Street, 26th Floor Chicago, Illinois 60654 Telephone: (312) 939-0920 Attorneys for Defendant Wilmington Trust, N.A. Mark Ankcorn, #1159690 Email: [email protected] ANKCORN LAW FIRM, PLLC 1060 Woodcock Road, Suite 128 Orlando, Florida 32803 Telephone: (321) 422-2333 Local Office: 200 West Madison Street, Suite 2143 Chicago, Illinois 60606 Guillermo Cabrera Email: [email protected] THE CABRERA FIRM, APC 600 West Broadway, Suite 700 San Diego, California 92101 Telephone: (619) 500-4880 Facsimile: (619) 785-3380 Attorneys for Plaintiffs


DB1/ 110162847.1

- 14 -

DATED this 26th day of November, 2019.

TERRELL MARSHALL LAW GROUP PLLC

By: /s/ Beth E. Terrell, Admitted Pro Hac Vice Beth E. Terrell, Admitted Pro Hac Vice Email: [email protected] 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450

Attorneys for Plaintiff


— EXHIBIT 1 —





Snyder, et al. v. U.S. Bank, N.A., et al














e.g





















— EXHIBIT A —


Snyder, et al. v. U.S. Bank, N.A. et al.




— EXHIBIT B —




— EXHIBIT C —


Snyder, et al. v. U.S. Bank, N.A., et al.,

A federal court authorized this notice. This is not a solicitation from a lawyer.




Snyder, et al. v. U.S. Bank, N.A., et al.








Snyder, et al. v. U.S. Bank, N.A., et al,

Attorneys for Plaintiff and the Settlement Class

Attorneys for Defendant

Snyder, et al. v. U.S. Bank, N.A., et al,



— EXHIBIT D —




— EXHIBIT E —













— EXHIBIT F —






See,

e.g., Boeing Co. v. Van Gemert Blum v. Stenson











Documents

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ... · DB1/ 110162847.1 - 2 - or after having revoked consent. See Snyder, et al. v. Ocwen Loan Servicing, LLC, No. 1:14-cv-08461,